Gazda v. Pioneer Chlor Alkali Co., Inc., CIV. A. H-96-1265.

• Citation: 10 F.Supp.2d 656
• Decision Date: 10 September 1997
• Docket Number: No. CIV. A. H-96-1265.,CIV. A. H-96-1265.
• Parties: Cheryl R. GAZDA, Plaintiff, v. PIONEER CHLOR ALKALI COMPANY, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

10 F.Supp.2d 656

Cheryl R. GAZDA, Plaintiff, v. PIONEER CHLOR ALKALI COMPANY, INC., Defendant.

No. CIV. A. H-96-1265.

United States District Court, S.D. Texas, Houston Division.

September 10, 1997.

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L. G. Clinton, Jr., L. G. Clinton Jr., and Associates, Houston, TX, for Plaintiff.

Kay L. Burkhalter, Seyfarth, Shaw, Fair-weather & Geraldson, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

ATLAS, District Judge.

I. INTRODUCTION

The Court has considered the Motion for Summary Judgment and Brief in Support [Doc. # 37] ("Defendant's Motion") filed by Defendant Pioneer Chlor Alkali Company, Inc. ("Pioneer") pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking summary judgment on each of Plaintiff's claims. The Court also has considered Plaintiff's Motion for Partial Summary Judgment [Doc. # 39] ("Plaintiff's Motion"), in which Plaintiff seeks summary judgment on the Americans With Disabilities Act ("ADA"), and the Family and Medical Leave Act ("FMLA").

Plaintiff, Cheryl R. Gazda ("Gazda") was employed by Defendant Pioneer as a Computer Operations Coordinator effective December 1, 1992. Beginning on June 22, 1995, Plaintiff stopped coming to work. Plaintiff's employment was terminated effective August 11, 1995. On August 24, 1995, Gazda filed her Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging sex discrimination, retaliation, and disability discrimination. By her Complaint, Gazda sues Pioneer for alleged sex discrimination and sexual harassment in violation of Title VII of the Civil Rights Act, violation of the ADA and FMLA, retaliation for opposing alleged unlawful employment practices in violation of Title VII, and intentional infliction of emotional distress under Texas state common law.

Adequate time for discovery has passed, and Pioneer seeks summary judgment on all claims asserted against Pioneer by Gazda in her Original Complaint. Plaintiff has crossmoved as to the ADA and FMLA claims.

Defendant is entitled to summary judgment on each of Plaintiff's claims because:

a. Gazda has failed to establish a prima facie case of sex discrimination or sexual harassment. Alternatively, Gazda has failed to present more than a scintilla of evidence to show that Defendant's articulated non-discriminatory basis for termination or her treatment during employment was a mere pretext for intentional discrimination;

b. Gazda has failed to establish a prima facie case of retaliation for filing an EEOC charge or complaining of conduct alleged to violate Title VII. Gazda failed to present more than a scintilla of evidence that Defendant's articulated explanation was a mere pretext for intentional retaliation;

c. Defendant is entitled to judgment as matter of law on Gazda's claims for employment termination in violation of the ADA, since she was unable to perform the essential functions of her job as Computer Operations Coordinator with or without reasonable accommodation;

d. Gazda cannot state a claim against Pioneer for alleged violation of the FMLA, as Gazda is not an eligible employee for coverage under the Act. Pioneer does not now and did not in 1995 have the requisite number of fifty employees at or within 75 miles of the Houston work site at which Gazda worked; and

e. Gazda cannot establish that the conduct complained of relating to her termination is sufficiently extreme and outrageous to state a claim for intentional infliction of emotional distress under Texas state law.

II. BACKGROUND FACTS¹

Pioneer Management Information Systems ("MIS") Director Paul Yust hired Cheryl R. Gazda, a white female, effective December 1, 1992, as the company's Computer Operations Coordinator in Houston. Throughout her tenure at Pioneer in Houston, Gazda worked at the corporate headquarters' offices located in Houston, Texas.²

Pioneer owns two chlor-alkali manufacturing plants.³ Fewer than fifty people were employed on Pioneer's payroll (and its subsidiaries and parent company) in Texas in June 1995, and throughout 1995.⁴ There were never 50 or more employees within 75 miles of its Houston office in 1995.

At all times during her employment by Pioneer, Gazda was an at-will employee. Gazda's duties while working for Pioneer were to maintain and install upgrades for the company's main frame and other computer systems. Due to the nature of Gazda's job, it was frequently necessary for her to work weekends and holidays because the computer systems often could not be repaired during Pioneer's normal business operations. Defendant contends that Gazda lacked certain skills required for her position when she was hired as a permanent employee of Pioneer in 1992.⁵ Ms. Gazda does not dispute this fact and agreed at the time she was hired as a full-time employee that she would take all steps necessary to improve her skills.

Robert Bissett was Systems Support Coordinator in Defendant's Management Information Systems ("MIS") Department during Gazda's employment.⁶ Greg Percival was the Network Analyst/PC LAN Coordinator, which was the primary liaison between all employees and the personal computers and their networking systems.⁷

A. Plaintiff's Complaints About the St. Gabriel Trip of February 1993 and Pioneer's Response⁸

In February 1993, Bissett and Gazda went to St. Gabriel, Louisiana, acting under instructions from their supervisor Yust and were scheduled to perform computer services at Pioneer's chlor-alkali manufacturing plant there. Gazda complains that during the time she and Bissett were together in St. Gabriel, Bissett used profanity and made numerous inappropriate comments to her, and touched her in threatening (but non-sexual) ways during arguments.⁹ In discovery, Gazda has produced diary notes documenting these events, which she wrote and gave to Yust shortly after her return to Houston.¹⁰

Gazda called Yust from St. Gabriel on Saturday, February 27, 1993, and reported Bissett's behavior, which she felt was inappropriate. Yust immediately called Bissett and ordered him to return to Houston. Yust also reported the complaints to Yust's own supervisor, George Henning, chief financial officer of Pioneer. Yust and Henning immediately began an investigation, which included interviews of Gazda and Bissett. They counseled Bissett to be more professional in his behavior and warned him that directing profanity at any other employee was not acceptable. The chief complaint they perceived from Gazda was that Bissett had been unkind to her. Yust and Henning concluded that there had been no sexual harassment. They counseled both parties to behave more like a team and work together.

Pioneer had a sexual harassment policy in place in February 1993. Yust followed this policy in promptly investigating Gazda's complaints.

B. Additional Allegations by Plaintiff of Inappropriate Conduct Allegedly Constituting Sexual Harassment or Sexual Discrimination

1. Alleged Harassing Behavior. — The St. Gabriel incidents occurring in February 1993 are the primary basis for Gazda's sexual harassment claim. However, Gazda also asserts that she was subjected to additional sexual harassment during her employment, which included:

a. Sara Rasmussen, the Human Resources Supervisor, and/or Maria Montoya, Payroll and Benefits Administrator, allegedly referred to Gazda's high heels as "fuck me pumps."

b. Yust allegedly "pass[ed] wind," scratching and burping in Gazda's office and performing other unpleasant bodily functions in her presence.

c. Bissett allegedly snapped the bra strap of a co-worker, Cathy Barrows, in 1994.

d. Another Pioneer employee, Scott Wilderman, used the word "fuck" in her presence and reporting her to her superiors because it took her too long to fix his computer.

e. Bissett allegedly used the word "fuck" with other employees within Gazda's earshot.¹¹

f. Yust allegedly criticized Gazda's long fingernails, high heels, and dresses, and asked her to wear Dockers-type pants, because her job required her to crawl under desks and move computers g. Rasmussen criticized Gazda's high heels and long flowing dresses, which Rasmussen believed created a safety hazard.¹²

h. Henning required Gazda to report to Yust, and then Henning generally took Yust's side when Gazda complained.¹³

i. Gazda's co-workers ceased to ask her to lunch on or after February 1993.

j. Bissett had a "nicer" office than Gazda had.

2. Plaintiff's Salary and Terms and Conditions of Her Employment.—Gazda was originally employed by Pioneer at a monthly salary of $2,583.33 per month. She received time and one-half pay for her overtime work. Gazda received no raise in 1994 because there was a salary freeze in effect in 1994 for office employees of Pioneer.¹⁴ Gazda did not receive a raise in 1995 because her performance was rated at a "2," which was below the acceptable level. Pioneer's company policy is such that persons receiving a performance rating of "2" automatically do not get a raise.¹⁵

No other employee at Pioneer had the same job duties as Gazda. The two other non-managerial employees in the MIS Department during Gazda's employment, Percival and Bissett, were exempt employees with different job duties who did not get paid for overtime work.¹⁶ Gazda was given the choice of whether her position would be exempt or non-exempt; she chose to be non-exempt because she was aware that the job required substantial overtime and Pioneer agreed to pay her for the extra hours she had to work.

Gazda claims that from the time she was hired by Pioneer until her employment termination she was forced to work excessive hours and to work a disproportionate share of weekends. She acknowledged, however, that she knew overtime would be required upon commencement of her employment, which consisted of installing upgrades on Defendant's computer system, work that could not be done during ordinary business hours. Gazda concedes that she was the only person in the MIS Department...